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The flat on P2P? Unreal and wrong

The flat on P2P? Unreal and wrong

More than one politician and even some authoritative commentators have recently embraced in Italy the idea that a sort of “flat rate tax” or collective license, to remunerate rights holders, could be the solution to the free sharing of content on p2p thus eliminating the problem of piracy and at the same time guaranteeing the remuneration of right holders. A sort of mediation between “no copyright” on the one hand and the right to receive compensation for the work produced and distributed on the other. But are we really facing the solution or, on the contrary, are we risking to reproduce in the online mechanisms already adopted and being overcome in the physical world?

In the first place, it is useful to know in what context, relative to international treaties, the phenomenon of sharing protected works linked to the internet (for example file sharing) arises. The diffusion of works on the network is distinct from “broadcasting”, or the right of communication to the public and instead falls within the context of the right to make works available to the public, which traditionally covers all the activities carried out on the network.

The Internet was therefore considered, in the WIPO / WIPO treaties and in the EU Copyright Directive, as a technological platform very different from traditional linear broadcasters such as radio or TV, above all for the great innovation of interactivity.

It is no coincidence that the legislator’s choice was to define the right to make it available to the public (which is the case of p2p), as the right to authorize or prohibit the making available of works in such a way that everyone can have access to them. from the place and time chosen individually (therefore on-demand).

Limiting ourselves only to this evaluation on the international regulatory level it would already be impossible to apply to p2p rules concerning, for example, radio by assimilating the network to a large and single radio or TV to which access and then “listen” or “see” the contents without the prior consent of the rights holders (right to fair compensation). This would violate the international treaties signed by Italy and the aforementioned European Directives. A possible reform of the right to make it available to the public should therefore at least be proposed in the WIPO / WIPO treaty also because it is clear to everyone that a rule of this magnitude should be adopted by all signatory states, since it is by definition internet and p2p a global platform.

Then, going into the merits of the flat fee payment proposal, or the so-called “flat” tariff, significant contradictions emerge, also on a technological level, which I would like to analyze in detail.

The definition of a single tariff, which would allow users to exchange music, films or software, via peer to peer networks requires the development of a system for sharing the rights of copyright holders that is contrary to the same opportunities offered. technology, on the one hand, and on the other hand, would absolutely not benefit the new musical productions, because it would only crystallize dominant positions in the traditional market.

It should also be remembered that if on sites such as Myspace, YouTube, or Last fm, just to mention some real protagonists of the so-called social networking, it is possible to discover new talents also thanks to the socialization operation and the phenomena of recommendation, the p2p (which it does not belong to the category of social networking but it is a distribution platform, let’s not forget it) it is nothing more than an amplifier of notoriety for those who are already famous. It is no coincidence that 90% of the most traded songs in the given instant are the most past songs on the radio or new releases by already known artists and the remaining 10% is a catalog that is no longer republished or difficult to find. More or less equal to zero is the presence of new artists who use p2p to make themselves known but who instead are strongly present on Myspace, Facebook and other sites where they take the opportunity to be really known by advanced consumers who are careful to evaluate new proposals. .

Taking this into account, we address the issue of the distribution to those entitled to this presumed flat rate that would be paid indistinctly by the telecommunication operators.

If we take as a model the distribution mechanisms of the so-called fair remuneration for private copying, i.e. the blank levy note on blank CDs or cassettes and today on memory sticks, mp3 players and more, the distribution by collecting companies (SIAE and others ) takes place on the basis of the paid sound mechanic, or copyrights paid by companies for the production of music CDs or today in any case of music pieces for which they have requested licenses. With this parameter, the only one able to reach a significant degree of reliability taking into account the indistinct income that reaches the collecting companies from users, the companies that produce more music CDs or have a greater market share on the sales market of records also get the largest share of private copying, just as the best-selling authors get the largest share in their own distribution.

Other systems proposed to remunerate the entitled parties with the flat for file sharing by EFF (Electronic Frontier Foundation) are even worse, because by basing the criteria on calculation mechanisms that take into account the sales rankings or radio charts, they would in fact lead to distribute the rights of the so-called flat for p2p always to the companies and authors who are more present in the rankings and therefore, paradoxically, those who already collect rights would collect more and more, while the rights of those who are at the beginning of their career or only produce a cd every three years would end up in an unrepeatable cauldron because it is too complicated to identify.

A generalized flat rate system, compensated for a lump sum, would only generate greater revenues for major majors and famous artists who have the largest catalogs, to the detriment of emerging artists who could never (or little) claim from a flat rate system which by definition would only reward the big ones. numbers.

Not only that, the flat would kill interesting models such as the creative commons, because for an artist or label it would no longer be possible to apply the distinction between non-commercial and commercial because in any case the works would be disseminated without control and moreover it would not enhance the qualitative production compared to the mass produced. In fact, if the record company obtained a generic revenue, because it should produce something niche or of quality, it would be enough to produce a hit radio track to get the top of the radio charts and therefore have a greater share of allocations from the flats.

The case would be different in which, as is already the case with projects under development and some already on the market, the file sharing network was a centralized network with a system for sharing content between users who subscribe to the service and who pay a subscription. , like a monthly flat. The filtering systems based on the so-called finger prints, active on the network, such as the technology of Audible Magic to give an example, would allow users to share the authorized materials whose fingerprints would be stored in the database of the p2p service, thus preventing the uploading of illegally reproduced works, keeping track of transactions and thus also being able to distribute the rights to copyright holders.

All companies or artists who would have authorized part or all of the repertoire to be distributed in the system would be rewarded by the service for each download made. The same thing would not be possible on generalized file sharing networks because no telecommunications operator could (would like to) set up a system for tracking files shared by millions of users around the world.

The one highlighted here, that is, a file sharing network with controlled delivery and flat subscription, would be a certain and effective system that would also allow, on the one hand, the spread of emerging groups based on viral marketing and, on the other, to distribute the subscription fee up to the single download. signed by the user, giving everyone what they really deserve.

It is anti-historical and it is also surprising that a proposal such as the generalized flat comes from technology experts or from subjects who care about the expansion of the offer and the limitation of concentrations, in an era in which it is possible, thanks to new technologies , actually pay a few cents sms and keep track of microtransactions connected to it. Establishing fair compensation on the internet is shortsighted as well as damaging the future of artists, businesses that develop new talents and even the development of user generated content.

Enzo Mazza

Enzo Mazza is president of FIMI, the Federation of the Italian music industry